A Different Approach to War Powers Regulation

David Super

     Whatever one thinks of the merits of President Trump’s attacks on Venezuela and Iran, and his threats against Greenland, they certainly sound the death knell for Congress’s constitutional right to declare war.  Over several decades, that power has deteriorated both through congressional authorizations of military action falling short of traditional declarations of war and through presidential military actions wholly lacking in congressional approval. 

     Non-declaration declarations of war, such as the Gulf of Tonkin Resolution and the Authorization for the Use of Military Force, may be enacted before Congress knows that a full war will ensue.  One may question whether the scope of the wars that followed was appropriate without further congressional approval, but at least those wounds to Congress’s powers were self-inflicted – and partially ratified through military appropriations. 

     Presidential actions wholly lacking congressional approval are a more direct threat.  Presidents initially justified them as defensive and minor, although President Obama’s bombing of Libya was clearly neither.  President Trump’s choices to seize Venezuela’s oil and (vile) president, to kill Iran’s (monstrous) Supreme Leader, and possibly to conquer Greenland’s territory, certainly are neither defensive nor minor.  Yet under our current practice, Congress was not involved in the first two and likely would not be consulted – because it surely would not consent – on any attacks on Greenland. 

     Presidential war-making was one of several serious separation of powers problems addressed at the end of the Nixon Presidency.  The War Powers Resolution, like the Impoundment Control Act that dates from the same period, has proven inadequate for our hyper-partisan realpolitik era.  If President Trump retained enough Republican support for an attack on Greenland to sustain a veto in either chamber of Congress, the War Powers Resolution provides no way to stop him.  Eventually a government shutdown might deprive the invasion force of funds, but by then enormous, lasting damage would be done.  (For example, at present the military is fully funded, needing no affirmative congressional action, for the next seven months.)  We need to consider how we might do better.

     The fundamental problems hampering the War Powers Resolution’s design spring from Congress’s difficulty in acting quickly.  This matters in two settings.  First, where military action is urgent, the consensus was that Congress could not be relied upon to act quickly enough to authorize necessary action.  That led to language effectively permitting the President to act unilaterally.  And second, where military action is unwise, Congress cannot timely stop the President, particularly if it lacks two-thirds majorities to override a veto.  Thus, presidents – or at least presidents who are willing to make false findings of exigent circumstances and who dominate their political parties – can make war as they please and veto any efforts to restrain them. 

     Resuscitating congressional control over warmaking therefore requires a reliable mechanism for Congress to act more rapidly.  The ideal mechanism would be a bipartisan constitutional amendment empowering a special committee of Congress to act quickly on presidential requests to exercise military force.  With recent presidents of both parties having defied congressional prerogatives with war-making that the other party opposed, this might be feasible if it was made effective only for future presidents. 

     But something similar also should be possible even without such an amendment. 

     The easier case is when Congress is in session.  Each chamber could adopt rules aggressively expediting procedure to consider requests to authorize military action.  Such rules already exist for a variety of special situations.  For example, the Congressional Review Act specifies the text of a joint resolution of disapproval and therefore prohibits amendments.  The CRA grants committees twenty calendar days to act and senators on the floor ten hours to debate, but those limits could be truncated severely.  The CRA also prohibits other dilatory tactics. 

     A greater challenge is how to handle crises arising with Congress away, whether for a weekend or an extended period.  Some state legislatures address this sort of problem by empowering special committees, but INS v. Chadha makes clear that Congress may only exercise external power through bicameralism and presentment.  And Article I, section 5, specifies that a majority of each chamber is a quorum. 

     In some instances, convening a majority of each chamber virtually may be possible, as was allowed during the coronavirus pandemic.  Republicans objected, but at least some might feel differently if an urgent matter of national security was at stake.  This cannot be the only option, however, because some attacks could disrupt communications so thoroughly to preclude a virtual meeting. 

     For those limited cases, the rules of the House and Senate could forbid quorum calls.  This is not without precedent.  Both chambers continue the British parliamentary tradition of assuming the presence of a quorum unless and until it is established to be lacking.  House Rule XX.5 establishes procedures by which a quorum of the House may be based on the number of Members available, rather than the total number elected, in case of a natural disaster, attack, pandemic, or similar catastrophe.  A similar procedure, limited to authorizations of military force but with accelerated timelines, could be established for both chambers to act on presidential requests for authorization to apply military force.  Various other House precedents prohibit quorum calls under particular circumstances, and the “special rules” under which important legislation is often considered may prohibit quorum calls.  Similarly, Senate Rule XXII.2 allows only one quorum call once the Senate has voted to invoke cloture (cut off debate); as it stands, once that quorum call is held, senators are free to scatter.  Thus, the practical difference between one quorum call and none is limited.  The Senate also sometimes prohibits quorum calls by unanimous consent.  Indeed, Rule VIII of the first Senate’s rules, and the comparable rule in the first House of Representatives, appear to have limited when motions to ascertain the presence of a quorum could be raised.

     Quorum requirements, of course, serve important purposes, among them increasing balance and accountability.  These concerns could be addressed by limiting expedited floor procedures to authorizations of military action reported out favorably by special committees of each chamber established for that purpose.  Party leaders could rotate those committees’ memberships throughout the year to ensure that it always contains Members staying in Washington and ready to convene quickly if the need arises.  These special committees would become part of the continuity of government architecture and would have high quorum requirements to prevent the majority party from excluding the minority.  Measures enacted under these special procedures could be time-limited so that the full Congress would have to be persuaded before the country became too bogged down in a conflict.    

     Once provision has been made for Congress to quickly authorize appropriate military action, Congress could enact much stronger prohibitions against action without congressional authorization.  Congress would likely still need to provide some standing authorization for responses if hundreds of nuclear missiles are detected coming over the North Pole, but the presence of an expedited congressional process would allow those exceptions to be drawn very narrowly, without vague, manipulable language such as the “in every possible instance” requirement of the War Powers Resolution that President Trump casually disregarded. 

     In practice, Congress might choose to enact some conditional authorizations of war-making.  These, however, could be narrowly and objectively drawn to curtail bad faith adventurism. 

     None of this addresses a President willing to disregard these procedures and arrogate Congress’s constitutional prerogatives.  But having a viable mechanism by which Congress could be consulted would prevent presidents from claiming adherence to the Constitution was effectively impossible.  And being able to say with a straight face that the President must always obtain congressional approval for military action could allow Congress to enact other measures, such as an automatic cut-off of appropriations for unauthorized military action and civil forfeitures for participating contractors, that could force presidents either to comply or to embrace open lawlessness.

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